By Lisa Keen
WASHINGTON – Right-wing religious advocacy groups are storming the courts to get into the halls of public education across the nation, and their mission – at least in part – is to express their hostility toward gay people.
Dozens of lawsuits filed by right-wing legal groups are now pending before various federal courts around the country, seeking exemptions from school non-discrimination policies. Frequently, the lawsuits are triggered by a religious activist's desire to use a public forum at the school to express his or her belief that homosexuality is a sin.
Four skirmishes in just the past two weeks illustrate the point. Two of these were in San Francisco and only one was successful, but the overall conflict is widespread and far from over.
A federal appeals panel in San Francisco ruled April 20 that high school officials in San Diego could bar a student from wearing a t-shirt to school proclaiming his belief that "Homosexuality is shameful."
A federal district court judge in San Francisco ruled April 17 that a state law school can deny official recognition to a Christian student group because that group refuses membership to students who are gay or who are not Christian.
Three high school students in a small town outside of Philadelphia filed suit in federal court April 17 for the right to form a Bible Club and express their view that homosexuality is sinful and harmful.
And a federal appeals panel ruled April 14 that a state university in Arkansas cannot limit the amount of time an anti-gay preacher uses a campus speech forum to express his views, even though they have sometimes led to disruptions requiring police control.
Most of the lawsuits are being mounted by the Alliance Defense Fund, a 13-year-old organization founded by Focus on the Family leader James Dobson and other religious right leaders. The ADF launched a campaign in February to strike down or secure religious exemptions from anti-harassment policies at schools around the country, saying they violate free speech and exercise of religion.
In a smaller but similar quest, another right-wing legal group, the Christian Legal Society, filed six lawsuits in the past two years against universities for requiring its campus chapters to abide by school non-discrimination policies prohibiting discrimination based on sexual orientation. The CLS is a much smaller but older organization, started in 1961, that describes itself as "a national membership organization of Christian attorneys, judges, law professors and law students."
The scorecard for both groups is mixed but both are winning victories both in and out of court, and appealing their losses in court.
In the case closest to reaching the U.S. Supreme Court, the ADF said it plans to appeal to the full 9th Circuit U.S. Court of Appeals an April 20 decision from a three-judge appeals panel. That decision held that Poway Unified School District officials in San Diego were within the bounds of the federal constitution when they insisted a high school sophomore not wear to school a t-shirt emblazoned with the message, "Be Ashamed, Our School has embraced what God has condemned. Homosexuality is shameful." The school had been the site of numerous conflicts, including physical assaults and altercations, between gay and anti-gay students.
Citing U.S. Supreme Court decisions from the 1960s, when wearing armbands to protest the Vietnam War were causing disruptions, the 9th Circuit panel ruled that "schools may prohibit speech that 'intrudes upon…the rights of other students'."
"The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment," wrote Judge Stephen Reinhardt (a Carter appointee).
Although the student, Tyler Harper, contended that he was punished for wearing the t-shirt "motivated by sincerely held religious beliefs," wrote Reinhardt, there was no evidence that school officials treated students differently if they wore t-shirts with non-religiously oriented hate messages directed at gays. Reinhardt was joined in the decision by Judge Sidney Thomas (a Clinton appointee). Judge Alex Kozinski (a Reagan appointee) dissented.
It was a George W. Bush appointee who ruled against the CLS chapter at Hastings College of Law at the University of California-San Francisco April 17. Judge Jeffrey S. White, citing a U.S. Supreme Court decision allowing St. Patrick Day parade organizers in Boston to exclude gay contingents, said that non-discrimination policies such as the one at Hastings, "targets conduct, i.e. discrimination, not speech" and "does not target or single out religious beliefs" but is neutrally applied.
The CLS chapter at Hastings College had official school recognition and entitlement to funding and use of facilities until September 2004, when the club adopted the national organization's bylaws, prohibiting gays and people whose religious beliefs differ from those of the national organization's "Statement of Faith."
Steve Aden, Chief Litigation Counsel for CLS, told this paper his group will appeal the decision and that it has asked Judge White to "correct his misstatement that CLS excludes people on the basis of their sexual orientation."
"CLS does not exclude anyone from membership or leadership on the basis of their sexual orientation," said Aden, though membership is limited to those willing to sign the Statement of Faith. Among other things, said Aden, "CLS believes… that engaging in or advocating any sexual conduct, whether heterosexual or homosexual, outside the confines of traditional marriage is immoral."
Noting that a sexually promiscuous person would also be barred from membership, Aden said the lawsuit was "never about homosexuality."
"Homosexuality was merely one example of different kinds of extramarital conduct that would exclude someone from membership."
CLS has filed similar lawsuits at five other universities around the country, most of them dismissed. However, in a 2 to 1 decision last August, it won at least a temporary victory from a 7th Circuit U.S. Court of Appeals panel. The panel granted an injunction that requires the law school at Southern Illinois University to reinstate the chapter's official recognition until the legal questions can be resolved. In doing so, the judges made clear they think the Christian student group may have the right to exemption from the state non-discrimination law for the same reasons the U.S. Supreme Court said the Boy Scouts could ignore the New Jersey state non-discrimination law and the St. Patrick's Day parade organizers could ignore the Massachusetts law.
